Pham Van Duy and Others v. Torture Claims Appeal Board

HCAL 324/2019

[2024] HKCFI 1427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 324 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the 1st Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave for the 1^st, 2^nd and 3^rd Applicants (“the Applicants”) to apply for Judicial Review be granted;

2.  The 3rd Applicant be represented by the Official Solicitor pursuant to Order 80, rule 2 of the RHC;

3.  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

4.  The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) and 2^nd Applicant (“A2”) are a married couple in their late thirties from Vietnam who entered Hong Kong illegally on 20 December 2015 and shortly thereafter surrendered to the Immigration Department when they jointly raised a non-refoulement claim for protection on the basis that if they returned to Vietnam they would be harmed or killed by their creditors over their unpaid debts.

2.While being released on recognizance pending the determination of their claims, A2 on 17 March 2017 gave birth to their son, the 3^rd Applicant (“A3”) in Hong Kong, and for whom they also raised a non-refoulement claim on the same basis and to be assessed jointly together with theirs. 

3.A1 was born and raised in Ha Long Commune, Van Don District, Quang Ninh Province, Vietnam.  After leaving school he worked as a cook in his home district, married A2 who ran a fishing business, and raised their family with a daughter in their home district.

4.In 2013 with A2’s experience in fish farming business, they started a mariculture rafts business farming fish for sale with the help of 2 loans of 250 million VND each from 2 local money-lenders with no deadlines for their repayments but with interest charged on the loans payable every 10 days until the discharge of the loans, which they initially managed to do from their business income.

5.However, in mid-2014 their fishing business was wiped out and destroyed by a typhoon, and when they started to default with their interest payments, the money-lenders sent men to their home to threaten them, and when they were still unable to repay their loans, those men then beat them with wooden sticks violently that they suffered cuts and bruises all over their body, and on one such occasion one of the men took out a knife and threatened them that next time if they still failed to repay their loans, they would be chopped and killed.

6.Two months later one night when they saw those men from the money-lenders approaching their house, A1 and A2 immediately fled to next door to hide in the home of A2’s sister, and when those men were unable to find them in their home, they threw 2 funeral wreaths in front of their house and shouted threats that if they still failed to repay their loans, they would chop off both of their legs.

7.As thereafter those men kept returning to look for them, and as they were living in fear, A1 and A2 therefore left their daughter in the care of A2’s mother and fled to Hanoi, and in December 2015 they departed Vietnam for China, and from there they later sneaked into Hong Kong and subsequently raised their non-refoulement claims for protection, and upon A2 later given birth to A3, they also raised a non-refoulement claim for him on the same basis, for which they completed their Non-refoulement Claim Forms (“NCF”) and jointly attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.By a Notice of Decision dated 21 February 2018 the Director of Immigration (“Director”) rejected the Applicants’ claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from those money-lenders or loan sharks upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill them other than to press A1 and A2 to repay their loans while there is no evidence that they knew about A3’s existence let alone wanting to harm or kill him, that in any event these were private monetary disputes between A2 and A2 and their creditors without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 96 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the A1 and A2 as able-bodied adults with working experience to move with A3 to other areas of the country away from their home district in large cities such as Ho Chi Ming City or Hanoi where A1 and A2 had stayed before without incidents and where it would be difficult if not impossible for those loan sharks to locate them.

10.The Applicants then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 10 December 2018 before the Board during which both A1 and A2 gave evidence and answered questions raised of their claims by the Adjudicator for the Board.  On 30 January 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found the core of the account of A1 and A2 lacked credibility and reliability in that it was implausible that their creditors would have lent them such a substantial sum of money without requiring any security, that it was difficult to accept that no maturity dates were set for the loan agreements because if the debtors failed to repay for whatever reasons that the money-lenders would easily experience cash flow problem, and that it was illogical for those gangsters sent by the loan sharks to continue to yell threats from outside the house of A1 and A2 after they were unable to find them in their house, and rejected their accounts of having been harmed or threatened by their creditors or their gangsters as not credible that it was not necessary to consider other issues such as the availability of state protection or internal relocation, and concluded that the Applicants’ claims for non-refoulement protection failed on all the applicable grounds.    

12.On 4 February 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and in A1’s supporting affirmation of the same date they put forward the following grounds for their intended challenge:

(1) That the Board’s reasons for rejecting the credibility of their claims were not fair and without proper consideration of their other evidence in their totality or of their case in the round; 

(2) That the Board in rejecting the credibility of their claims failed to take proper account of the evidence that there was indeed a super typhoon in July 2014 in Vietnam that caused nationwide flooding and landslides which supported their case;

(3) That the Board arrived in its decision without making proper or sufficient inquiry into the Applicants’ evidence and just relied on unsubstantiated third party’s reports and without proper understanding of the real situations in Vietnam and instead just accepted the positive sides and ignoring the negative side of the country;

(4) That the Board failed to take any or sufficient consideration of the serious problem of corruptions in Vietnam before reaching the conclusion that state or police protection would be available to the Applicants from the risk of harm from their creditors; and

(5) That the Board rejected the Applicants’ claims by just relying on irrelevant or unimportant matters in assessing that they would not face any real risk of harm from their creditors upon returning to Vietnam.     

13.Given the fact that the Board rejected the Applicants’ claims essentially on its adverse finding on the credibility of their account of having borrowed loans from money-lenders or loan sharks and their fear of harm from them that caused A1 and A2 to flee Vietnam to come to Hong Kong for protection, and did not proceed to deal with any issue or assessment as to the availability of state protection or internal relocation, I propose to just focus on the first 3 grounds of the Applicants primarily their complaints against the Board’s finding on the credibility of their claims.

14.First, it would be relevant to set out in full the Adjudicator’s finding on credibility in the decision as follows:

“ASSESSMENT

79. In reaching the overall conclusion on the Appellants’ credibility, I have to take into account their personal characteristics, level of sophistication and all the circumstances of the case. Further, their accounts of their past and present situation should be duly assessed. The issue will be determined with reference to whether, looking at the case as a whole, the Appellants gave an account of events with sufficient detail and specificity; whether it is internally consistent and coherent to a reasonable degree; whether it is consistent with specific and general COI; whether it is consistent with other evidence to a reasonable degree; and whether their account is plausible.

80. The 1^st Appellant first raised in the hearing that he was assaulted outside the market, and that the creditor once indicated that the interest in arrears would be added to the principal sum of the loans which attracted interest. I find him exaggerating his accounts in the hearing.

81. As to the other parts of his evidence, his version was supported by his wife’s.

82. Having carefully considered their background, testimony and all the evidence before me, I find the core of their accounts lacked credibility and reliability in the following aspects:

(a) I find it implausible that their creditors would have lent them a substantial sum of money without security. I also find it difficult to accept that no maturity dates were set for the loan agreements. If the debtors failed to repay for various reasons, the moneylenders would easily experience cashflow problem;

(b) I also find it illogical that in around May 2015, the gangsters yelled outside the couple’s house after failing to find them. If they were satisfied that the 1^st and 2^nd Appellants were not at home, what was the practical purpose for such yelling? At that point of time, the gangsters had not acquired the knowledge that their relative was living next door and/or that they were at home.

83. For the reasons mentioned above, I reject their accounts that they had been harmed or threatened by their creditors or their gangsters.”     

15.To start with, it is not clear as to why the Adjudicator found the 1^st Applicant’s evidence given in the hearing as noted above at [80] exaggerating, or as to whether it was because he only raised it the first time at the hearing, or because of what the creditor said about interest in arrears being added to the principal sum of the loan if remained unpaid. The Adjudicator never explained or clarified in the decision, and on the face of such evidence I am unable to see why they would be considered as exaggerating in the circumstances of the Applicants’ case.  

16.More significantly, in the Adjudicator’s finding of the 2 aspects of the Applicants’ evidence referred to at [82] of the Board’s decision as implausible or illogical, and which led to the rejection of the core of their accounts due to lack of credibility and reliability, it appears that the Adjudicator had been influenced by her own views as to what loan sharks and gangsters in Vietnam would or should have conducted their business or behaved towards defaulting debtors whom they were trying to enforce repayments of their loans, and in doing so without any evidential basis or relevant COI in support of such views within the context of the situations or conditions in Vietnam.

17.In assessing the credibility of the claim of a non-refoulement claimant, it would be helpful to first refer to the UNHCR’s Handbook on the Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, February 2019, which sets out the relevant applicable principles and methods as follows:

“196. It is of general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowances for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

…

201. Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the other, sometimes a small incident may be ‘the last straw’; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear ‘well-founded’ …

202.  Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may not be an ‘deserving case’.”

18.These principles were affirmed by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 4 HKCFAR 187 at [21] of its judgment, and henceforth in assessing and making credibility finding in such claims, all the evidence, both oral and documentary, must be considered and assessed, and not just selected portions of the evidence, and when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence, and that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants.  In other words, the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated: see Immigration and Refugee Board of Canada’s Assessment of Credibility in Claims for Refugee Protection, 31 January 2004, at sections 2.2.1 and 2.2.2.

19.Speculation occurs when a decision-maker reaches subjective conclusions without relying on supporting evidence, and adverse credibility findings should not be based on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition, or gut feelings: see UNHCR’s Beyond Proof: Credibility Assessment in EU Asylum Systems, May 2013 at p41.

20.Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the claimant’s own evidence about what happened to him, as stated in the UK Home Office’s Asylum Policy Instruction: Assessing Credibility and Refugee Status, 6 January 2015, at section 5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think ‘someone genuinely fleeing for their life’ should have done, what ought to have been possible or not possible, or how ‘a genuine refugee’ would have behaved, or how they think a third party would have acted in the circumstances.”

21.In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, the UK Court of Appeal held that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behaviour and responses on the part of the claimant which run counter to what would be expected; and as to the actions of others, it is not inconceivable, for example, that a guard might allow a detainee to escape, or a sympathizer to provide assistance, even at the risk of punishment, as it will be important to explore the details and context of the escape or release at the interview of the claimant, and that Keene LJ in identifying the dangers of a decision-maker being influenced by his own views on what is or is not plausible in approaching the issue of credibility, emphasized the importance for the decision-maker to view a claimant’s account of events in the context of the conditions in the country from which the claimant comes as follows:

“25. There seems to me to be very little dispute between the parties as to the legal principles applicable to the approach which an adjudicator, now known as an immigration judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an applicant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the applicant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by the IAT in Kasolo v SSHD 13190, the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:

‘An English judge may have, or think that he has, a shrewd idea of how a Lloyd Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker.  Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford.  No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.’”  

22.Such views and approach have been adopted by the Hong Kong Courts, and in ST v Betty Kwan [2014] 4 HKC 419, [2014] 4 HKLRD 277, the Court of Appeal identified the dangers of adopting personal assumptions, conjecture or speculations when assessing a non-refoulement protection claim, as Cheung CJHC (as he then was) elaborated at para 43:

“A further example is the situation where material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such further probing, questioning or inquiry would mean the adjudicator’s drawing an inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a mean of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavor.”

23.In the present case, while there were clearly material and relevant COI referred to by the Director in his decision (para 16) of serious problems in corruptions and loan sharks in Vietnam, and which were also available before the Board as identified at [75] of its decision:

“In a report dated 8 July 2014, the Deputy Prime Minister of Vietnam, Nguyen Xuan Phuc emphasized the Government’s determination to curb organized crimes such as loan shark lending and chasing for debt repayment with illegal means etc. Further, the police was managed to arrest underground debt collectors in various incidents for charging and lending money above legal limits and other illegal conduct.”

24.Despite being clearly aware of the situations regarding illegal money-lending and loan sharks activities in Vietnam, it appears that the Adjudicator did not proceed to make further probing questioning or inquiry before finding those 2 aspects of the Applicants’ account of events as incredible and implausible based on own assumptions, speculations or conjecture on what loan sharks and gangsters in Vietnam would or should have done in the circumstances of the Applicants’ case.

25.For these reasons I am of the view that the Applicants’ intended application for judicial review of the Board’s decision is reasonably arguable on the basis that the Board erred in law in its assessment of credibility and/or failed to adopt the proper approach in assessing the credibility of the Applicants’ claims, thus meeting the threshold for leave to be granted for judicial review as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

26.In the premises, I grant leave to the Applicants to apply for judicial review of the Board’s decision on the ground as stated above, and direct that they shall within 14 days of this decision file and issue the originating summons, and to serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party.

27.Given that A3 is a minor, I also direct that the Official Solicitor shall represent him in the proceedings pursuant to Order 80 rule 2 of the Rules of the High Court, Cap 4A.

Dated the 28^th day of May 2024

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1